FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 26, 2018
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Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 17-2221
v. (D.C. Nos. 1:16-CV-00641-JAP-SMV and
1:07-CR-00286-JAP-1)
LEONARD G. MARQUEZ, (D. N.M.)
Defendant - Appellant.
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ORDER DENYING A CERTIFICATE OF APPEALABILITY
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Before LUCERO, HARTZ, and McHUGH, Circuit Judges.
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Defendant Leonard Marquez seeks a certificate of appealability (COA) to appeal
the denial by the United States District Court for the District of New Mexico of his
motion for relief under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1)(B) (requiring COA
to appeal denial of relief under § 2255). We decline to grant a COA and dismiss the
appeal.
A COA will issue “only if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a
demonstration that . . . includes showing that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks omitted). In other
words, the applicant must show that the district court’s resolution of the constitutional
claim was either “debatable or wrong.” Id.
In 2011, Defendant was sentenced to a term of 15 years under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e), for being a felon in possession of a firearm
following three prior convictions for violent felonies. The ACCA defines a violent felony
as one that:
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another [the elements clause]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the
enumerated-offenses clause], or otherwise involves conduct that
presents a serious potential risk of physical injury to another [the
residual clause].
Id.
After the Supreme Court decided in Johnson v. United States, 135 S. Ct. 2551
(2015), that the residual clause is unconstitutionally vague, Defendant filed his motion
under § 2255 challenging the sentencing court’s characterization of his prior convictions
for New Mexico burglary and New Mexico aggravated assault as violent felonies. The
district court denied the motion on the ground that New Mexico burglary is a violent
felony under the enumerated-offenses clause and New Mexico aggravated assault is a
violent felony under the elements clause.
In this court, Defendant acknowledges that his claims are contrary to circuit
precedent: Our decision in United States v. Turrieta, 875 F.3d 1340, 1347 (10th Cir.
2017), held that New Mexico residential burglary fits within the ACCA’s enumerated
crime of burglary. And we held in United States v. Ramon Silva, 608 F.3d 663, 670–671
(10th Cir. 2010), abrogated on other grounds by Mathis v. United States, 136 S. Ct. 2243
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(2016), that New Mexico’s crime of aggravated assault is a violent offense under the
elements clause of the ACCA. See also United States v. Maldonado-Palma, 839 F.3d
1244, 1249–50 (10th Cir. 2016) (aggravated assault with a deadly weapon under NMSA
1978, § 30–3–2(A) is a crime of violence under the elements clause of USSG § 2L1.2
(2015)), cert. denied, 137 S. Ct. 1214 (2017).
Defendant argues that our precedents were wrongly decided. But we cannot
overturn our precedents. See United States v. Badger, 818 F.3d 563, 569 (10th Cir.
2016). Accordingly, no reasonable jurist could debate the correctness of the district
court’s denial of relief.
We therefore DENY Defendant’s request for a COA and DISMISS this appeal.
Entered for the Court
Harris L Hartz
Circuit Judge
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